Sidelined
Once upon a time, homicide survivors had no place in the courtroom (except on the witness stand). We were sidelined; inconvenient observers in official hearings about the murder that rocked our world. I personally experienced it. It was maddening. It was said that our voices negated the hallmark of the American justice system – the presumption of innocence. We were reduced to unwanted spectators in trials about the homicide of our loved one.
Jennifer Riley, a victim rights advocate from Pennsylvania has this to say. “When you look at the scales of justice, there are only two scales, right? You have the state and the defendant. But there wouldn’t be a criminal justice system if there wasn’t a victim.”
Defense attorneys can be creative in ensuring we are sidelined. Sometimes our name is added to their witness list. Yet, they have no intention of calling us to the witness stand. Then why have our name on the list, you ask? They know witnesses are prohibited from being in the courtroom until they are called. We are banished to the hallway. Out of sight, out of mind.
Marsy’s Law: A Shift is Underway
The conversation is shifting. So is the packaging of existing crime victim rights. They’re slowly moving from the state’s legal code to a state constitutional amendment. Doing so strengthens the enforcement of those rights.
Marsy’s Law is the centerpiece of the national effort to enshrine the rights of crime victims in state constitutions. As of August 2023, Marsy’s Law has passed in California, Florida, Illinois, Georgia, Nevada, North Dakota Ohio, Oklahoma, South Dakota, and Wisconsin. It was given voter approval in Montana and Pennsylvania but overturned by their state Supreme Court. Clearly there’s pushback.
It took a homicide victim to bring this to the surface. Briefly, Marsalee “Marsy” Nicholas, age 21, was stalked and then shot in the face by her former boyfriend in November of 1983. She lived four hours and then succumbed to her injuries. Her funeral was held the following week. On the way home from her service her family stopped at a market and were confronted by Marsy’s murderer. They had no idea he’d been released on $100,000 bail. No one thought to alert them and there was no mandate that law enforcement do so.
Two long years passed before the case finally came to trial. He was ultimately convicted of second-degree murder. (The jury felt it was not premeditated.) He was sentenced to life with the possibility of parole.
Marsy’s mother and brother began the Marsy’s Law Initiative in 2008 to provide crime victims with some protections. It became the strongest and most comprehensive Constitutional victims’ rights laws in the U.S. and put California at the front of the victims’ rights movement.
Pushback
The American Civil Liberties Union (and others) consistently oppose victim rights legislation. They argue it grants rights to survivors before a defendant has been convicted, thereby interfering with a presumption of innocence. The ACLU actively opposes the adoption of Marsy’s Law in every state where it has appeared on the ballot. They also oppose our right to give a victim impact statement. (Please consider this if you donate to the ACLU.)
Increasing the rights of homicide survivors and other victims will not decrease the rights of the accused. It merely ensures fair treatment, respect, and access to justice. Equally important, it puts a face – our face – in the equation. It reminds everyone it was our loved one that was murdered.
Our Rights under Marsy’s Law
While defendants have more than 20 individual rights in the U.S. Constitution, surviving family members of murder have none. What will victim rights do for us? They ensure we will
- be notified of the arrest, release, or escape of the accused.
- be given advance notice of all court proceedings, time permitting.
- be informed of our right not to be intimidated, harassed or abused throughout the judicial process.
- have the right to prevent the disclosure of confidential information to the defendant’s attorney or the release of otherwise confidential information.
- have the right to refuse an interview, deposition, or discovery request by the defendant, their attorney, or another person.
- be informed of parole procedures and participate in the parole process.
- be notified of scheduled changes of a particular motion or trial date.
- be informed of our right to be represented (i.e. victim advocate, attorney, or someone else of our choosing).
- be assured of our right to have our personal property returned that was taken for evidence.
- be told of a prompt and timely disposition of the case.
- learn the verdict in the case even if we are not present.
- be told of our right to be present and heard, when relevant, at all criminal proceedings.
- be informed of our right to obtain Crime Victim Compensation, restitution, and other services.
- have our employer or school officially notified if we must appear in court.
- be given information about submitting a verbal or written victim impact statement at sentencing or at the time of a parole decision
How do these rights interfere with the rights of the accused or convicted?
Life Without Victim Rights Laws
Here’s an example of what can happen in a state without Marsy’s Law. Back in 2017, 18-year-old Hunter Tash-Smith decided to hitchhike from Junction City, Oregon to Nebraska for a new job. A couple picked him up in Idaho and invited him to spend the night at their cabin. In the early morning hours, the couple (Nicholas Vandenberg and Montanna Reed) along with their friend (Willie Rabey) conspired to murder Hunter “for practice” in the morning, as they’d planned more murders in the future. The next day they shot Hunter at close range and left his body in the Owyhee desert. Two hunters found it 121 days later.
To help identify the skeletal remains, detectives flew from Idaho to Oregon to get DNA samples from a woman they believed was related to their victim. She was. They spoke with his mother. This confirmed the name of their victim.
After the identification was made, the trial eventually began. According to an interview with his widow on the podcast Serial, nobody in Idaho bothered to notify her of the legal proceedings. They knew about his family in Oregon. They’d even met them. Hunter’s widow subsequently called the courthouse in Idaho and the D.A.’ ‘s office several times for updates but no one helped her. She ended up relying upon the internet for information about her husband’s murder trial and verdicts.
Victim Rights Attorney
The legal system is opaque to homicide survivors, especially with the added “fog” of grief. What good are these rights if we don’t know about them? Or if they aren’t enforced? Or if we don’t understand them? Or worse yet, don’t have them?
This has been the unquestioned status ever since attorneys took our place in the courtroom over a century ago.
We now have the option to hire a Victim Rights Attorney to represent us. It’s as if we’re suddenly installing that third scale to the scale of justice.
We do have Victim Advocates, and they are necessary, but they are not attorneys. They can’t file motions, don’t have access to certain data banks nor do they have the same standing in the courtroom as attorneys.
A Victim Rights Attorney helps ensure that the criminal justice system lives up to the values it purports to stand upon.
Attorneys in this new specialty ensure that your homicide case will be taken seriously and that all the rights afforded to you will be carried out. They are skilled at interpreting and understanding law enforcement and criminal justice concepts, practices, and codes and the consequences for violating them.
The presence of a Victim Rights Attorney helps the legal profession understand that the case does not end with a conviction. We know that the homicide of our loved one put us on an entirely different trajectory. The concept of “closure” after a verdict isn’t just fantasy, it’s an insult.
Another benefit of hiring a Victim Rights Attorney is witness preparation. They can assist with understanding court procedures and help reduce pressure while you’re on the witness stand by refreshing your memory about a fact or detail if needed. They will probably remind you, from time to time, that the burden of proof isn’t on you. It’s on the prosecutor.
This is “trauma-informed law.” It’s every bit as unique and needed as “trauma-informed therapy.” Generic won’t do. Not with homicide.
How to Learn More
Two ways to learn more about this cutting-edge law specialty.
Contact the National Crime Victim Law Institute (NCVLI) at https://ncvli.org. This is a nonprofit legal education and advocacy organization in Oregon. They actively promote victim-centered legal advocacy. They will connect victims with attorneys, family law attorneys, and other key support services in the caller’s area. (They do not directly represent you.)
Another option is to contact Victim Rights Attorney Rachel Robinson, Esq. in Colorado who is at the forefront of this movement. She is also a former prosecutor. If you’re outside Colorado, you’re still welcome to become a member of her Legal Concierge Services. Among other benefits, she will help connect you to appropriate attorneys in your area.
Attorney Robinson takes this further. She recognizes our struggle to function under the load of trauma and that there’s much more going on than the court case. She has a unique, holistic approach to victim rights law. She has said, “It does not matter what happens in court if their minds, spirits, hearts are broken.”
To address this unmet need, Rachel has added a Healing Portal. Survivors who join this service can expect to be assisted in connecting with local community support, wellness workshops, and other experts in the healing professions locally or via virtual episodes on her portal. This is where trauma-informed law meets trauma-informed wellness care.
Rachel realizes the need for trauma-informed law exceeds availability. Her long-term goal is to influence the training of future law students to increase the number of attorneys in this needed specialty.
To hear Rachael yourself, just listen to the February 8, 2023 episode of Domino Effect of Murder podcast.
https://www.therayofjustice.com/
Somebody has to stand
when other people are sitting.
Somebody has to speak
when everyone else is quiet.
–Bryan Stevenson
